To be effective, US policy on PRC must be actioned early and often

April 8th was the 10th anniversary of the start of the Scarborough Shoal standoff between China and the Philippines in the South China Sea. A decade later, and in spite of an international court ruling against Beijing, the People’s Liberation Army has expanded, deepened and hardened its hold over the area, including turning several islands into full-fledged military bases.

In this edition of Indo-Pacific: Behind the Headlines, we speak with David R. Stilwell, the US Assistant Secretary of State for the Bureau of East Asian and Pacific Affairs (EAP) from June 2019 to early 2021. He served in the Air Force for 35 years, rising to the rank of Brigadier General and acted as the Asia advisor to the Chairman of the Joint Chiefs. He also flew fighter jets and was Director of the China Strategic Focus Group at US Indo-Pacific Command from 2017 to 2019. He served across the Indo-Pacific, including as Defense Attaché in Beijing, and speaks Korean, Mandarin and some Japanese.

Q: In 2015, Party Secretary Xi Jinping stood next to President Obama in the Rose Garden and made a usually pointed public commitment that he had no intention of militarizing the artificial islands he’d just built in the South China Sea. But last month INDOPACOM commander ADM Aqualino said they were fully militarized. What happened?

A: Xi Jinping’s statement in 2015 got a lot of attention, in part because it’s rare that a Chinese leader would make such an unambiguous public declaration and also because of the PRC’s illegal activities at Scarborough Shoals three years prior. You’ll recall that in 2012, PRC government ships forcibly ejected Filipino fishermen from Scarborough and have occupied it since. Scarborough is 124 miles from the Philippines—inside Manila’s Exclusive Economic Zone (EEZ)—and 469 miles from China.

After that, between 2012-2015, Beijing destroyed incredible amounts of pristine coral reefs to create seven artificial islands on disputed features, which as ADM Aqualino noted, have become military bases. The parallels between PRC actions in the South China Sea and Russia’s in Ukraine are hard to miss. Rather than resolving disputes through dialogue with other claimants Vietnam, Malaysia, Brunei and the Philippines, Beijing resorted to force.

Q: Are Beijing’s claims legitimate?

A: That’s a complicated question, but there are ways to determine the legitimacy of competing claims without resorting to might-makes-right behavior. China is a very vocal signatory to the United Nations Convention on the Law of the Sea (UNCLOS), as is the Philippines. UNCLOS has an arbitration mechanism called the International Tribunal on the Law of the Sea (ITLOS) to which all signatories agreed they would submit in case of disputes. In 2015, the Philippines brought their case to the ITLOS, suing the PRC over its actions at Scarborough and elsewhere, and won.

The crux of the case deals with the concept of Exclusive Economic Zones—maritime space extending out to 200 nautical miles from sovereign territory—in which all fish and mineral resources belong to that country. Beijing does not recognize others’ EEZ’s in the South China Sea (although it demands that others respect its EEZs everywhere else); instead it claims all maritime space inside its ill-defined “9-dash Line” covering roughly 80% of the South China Sea.

In 2016, the ITLOS decided in favor of Manila, ruling that China’s maritime claims were illegal, that some of its territorial claims were illegal as well, and that Beijing was required to pay restitution to Manila for illegal actions at Scarborough and elsewhere. Beijing has to date ignored this outcome, despite UNCLOS membership.

Q: The Philippines is a US ally. What has the US done to support Manila through all of this?

A: Until just under two years ago, US policy was that we “take no position on the validity of individual claims” while insisting that disputes be resolved peacefully. Then, in July 2020, Secretary of State Mike Pompeo announced an updated South China Sea maritime policy that aligns the US with the 2016 ITLOS Award, denying China’s 9-dash Line claims. Given that the international body responsible for setting maritime standards had concluded that regional states’ EEZs should be respected, changing US policy to reflect just made sense.

Feedback from the change was positive, and Beijing’s response was muted. As an UNCLOS signatory, what could they possibly say? What’s interesting is Beijing’s language on the Arctic Ocean is almost exactly the same as our position on the South China Sea (and other disputed maritime space). But Beijing’s insistence on access to the Arctic puts it at odds with Moscow, which also maintains excessive Arctic Ocean claims.

Two lessons emerge. First, Great Powers are expected to live up to commitments to international rules and norms even if those rules work against that country’s interests—credibility is more important. Second, to be effective, Policy must be constantly repeated.

Q: If the US has made official written policy commitments, why do we have to constantly repeat them?

A: Unlike Strategy (i.e. the National Security Strategy), Policy doesn’t have the same formality, detail or permanence. It could be because Policy is typically political speech, broad and ambiguous language to maximize flexibility. When I was an apprentice diplomat at the US Embassy in Beijing (Defense Attaché), it was disappointing to see how bilateral meetings were characterized by the same tedious, time-wasting recitation of the same points we heard at the last meeting.

The PRC would lay out its boilerplate Three Obstacles complaints, and we’d come back with examples of the PRC’s repeated failure to live up to its commitments, like abiding by UNCLOS or PLA interceptors maintaining safe distance from our aircraft operating in international airspace.

It’s a funny thing about policy, if you announce it once and then go silent, the conclusion is that commitment to the policy is waning. Others will be incentivized to mount a challenge with the intent of obviating it. The 2012 Syrian Red Line policy statement is a negative example—the policy was announced, but US responses to Syrian challenges were unconvincing, which told Damascus that they could use chemical weapons with low risk.

Secretary Pompeo’s July 2020 policy announcement supporting UNCLOS and denying Beijing’s excessive maritime claims is a positive example. Continued verbal support of that policy change from the Biden administration reinforces the US commitment to the new policy and reassures ASEAN claimants. And it has had an effect; Beijing has abandoned policy statements claiming all maritime space inside the 9-Dash Line and now talks in terms of territorial claims—the four island groups of Pratas Islands, Paracel Islands, Spratly Islands, and the Macclesfield Bank (and surrounding waters). This appears to be Beijing’s new policy position, which is also ambiguous, maximizing flexibility.

Finally, more than words, US actions are the best demonstration of continued support to Policy—striking a Syrian airbase that used chemical weapons on Syrian people with 57 Tomahawk missiles in May 2017 is a good example. Closer to home, ADM Aqualino continues to support past commitments to “fly, sail and operate wherever international law allows”. In this case, that would be in the international air and maritime space of the South China Sea as defined by UNCLOS.